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D'Elia nephew got break from Conahan

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The nephew of reputed mobster William "Big Billy" D'Elia almost always got a break when he appeared before former Judge Michael T. Conahan, his uncle's constant breakfast companion.

Despite David J. Osticco's extensive record for robbery, escape and assault, Conahan approved his requests for work release, home confinement and incarceration in the Luzerne County lockup instead of a tougher state prison.

Last October, just three months before Conahan would find himself before a federal judge on corruption charges, he gave Osticco his biggest break yet. Facing a maximum of 77 years for walking away from work release and going on a robbery spree, Osticco got a sentence that could add as little as 18 months to his current two-to-four-year sentence for two previous robberies.

Conahan, who has been accused of conspiring with D'Elia to fix a defamation verdict against The Citizens' Voice, ignored state sentencing guidelines that should have landed Osticco in jail for at least five to 10 years because of his extensive criminal history, prosecutors say.

State court rules require a judge who deviates from the guidelines to explain his reasoning in open court, according to Luzerne County District Attorney Jackie Musto Carroll. The record in the Osticco case, including a transcript of the sentencing hearing, contains no reference to the guidelines.

Musto Carroll, informed of the discrepancy last week, said the deadline for appealing a sentence is 30 days, but her office will study the issue to determine its options.

"We're going to evaluate the situation to see if anything can be done," she said Tuesday.

D'Elia's relationship with Conahan is a key element in The Citizens' Voice's appeal of the $3.5 million defamation verdict awarded to Thomas A. Joseph, a friend of D'Elia's who claimed was defamed by the newspaper's coverage of federal raids at his home and business and D'Elia's home in 2001.

A D'Elia associate, Robert J. Kulick, testified at a hearing in the case earlier this month that he and D'Elia met frequently with Conahan over breakfast to ask for his help in court cases in which they had an interest. Kulick alleged D'Elia claimed to have intervened with Conahan to ensure a "positive outcome" in the Joseph case.

The former judge who handed down the Joseph verdict, Mark A. Ciavarella Jr., is Conahan's co-defendant in a $2.6 million kickbacks case. The two men face 87 months in federal prison after pleading guilty to fraud and conspiracy.

Ciavarella denied any impropriety in the nonjury trial that led to the Joseph verdict when he testified earlier this month, but acknowledged that Conahan and D'Elia, who is serving nine years on federal money laundering and witness tampering charges, have been friends for decades.

Conahan and D'Elia declined to testify at the hearing, citing their Fifth Amendment right to avoid self-incrimination. Conahan's attorney said he would have no comment Tuesday. D'Elia's attorney did not return a phone message.

Ciavarella's daughter, Lauren, a county assistant district attorney, represented the prosecution at Osticco's sentencing. Musto Carroll said Lauren Ciavarella, who had no involvement with the Osticco case before the sentencing, would have been unaware of his prior record. Lauren Ciavarella did not respond to a request for an interview made through Musto Carroll.

Osticco, 39, of Pittston, the son of D'Elia's late sister, Shirley, has been in and out of county court and county prison since 1996, pleading guilty to robbery, assault, escape and other charges in 10 separate cases. Every time he appeared in county court, his case was handled by Conahan. Conahan had influence over judicial assignments as president judge from 2002 through 2006 and through his first cousin, William T. Sharkey Sr., who was court administrator from 1996 until February, when he was charged with embezzling court funds.

The most recent charges against Osticco stem from May 2008, when he failed to return to the county prison following work release and went on a crime spree, robbing three businesses, two of them at knifepoint.

Osticco was in the county prison despite serving a two-to-four-year sentence for two previous robberies that normally would have been served at a state prison. At Osticco's October 2007 sentencing, Conahan had granted a request from his attorney for a county sentence so he could remain on work release.

According to a transcript of that hearing, defense attorney John Hakim told Conahan that several county prison officials had expressed support for Osticco to remain at the county lockup, including Deputy Warden Samuel Hyder. Hyder did not return a phone message Tuesday.

Hakim also told the judge that Osticco had job offers from two local businesses if he remained on work release, including Accumark Inc., a printing company owned by Joseph, the D'Elia friend who was a plaintiff in the defamation case.

After he was apprehended in the May 2008 robbery spree, Osticco personally filed a motion with Conahan asking that his 2007 sentence be modified so that he could serve time in a state prison to take advantage of the state's medical facilities and drug treatment programs.

Conahan granted that request in an August 2008 hearing. After the ruling, Osticco asked Conahan if he would preside over the pending charges from the May 2008 spree.

Conahan told Osticco to have his attorney, Joseph F. Sklarosky Sr., contact the court administrator's office, according to a court transcript.

"If he contacts the Court Administrator and they assign it to me for a plea, I'd be happy to hear it."

Osticco was scheduled to plead guilty on Oct. 23 via a video hookup between Conahan's courtroom and the State Correctional Institute at Fayette in the southwest corner of the state.

During that video hearing, Conahan took Osticco's guilty plea and asked Sklarosky if he wanted him to impose a sentence immediately, according to a transcript. Sklarosky replied he did.

Conahan then indicated that Sklarosky had informed him that the charges to which Osticco had just pleaded guilty were supposed to have been dealt with the last time Osticco had appeared before him for sentencing.

He proceeded to sentence Osticco to two to four years, concurrent with the robbery sentence he had been serving since 2007. Conahan's sentence meant Osticco could serve as little as an additional 18 months, depending on decisions by state parole officials.

Under his plea agreement, Osticco pleaded guilty to all 11 charges stemming from his escape and robbery spree, including multiple counts of robbery, assault and terroristic threats, that carried a maximum of 77 years.

"The plea was a great plea. He pled to every charge," Musto Carroll said. "We did not drop one charge."

However, since Lauren Ciavarella was not the attorney who drew up the plea agreement, had no prior knowledge of the case and was probably expecting just a guilty plea with sentencing to be scheduled later, she was not aware of Osticco's prior record. The two-to-four-year sentence would have appeared within the guidelines to Ciavarella, Musto Carroll said.

Conahan's decision to go ahead with sentencing without the customary pre-sentence report would not have appeared unusual since he expressed he had prior involvement with Osticco's case, Musto Carroll said.

"That wouldn't have raised any red flags," she said.

Judging from Osticco's court records and hearing transcripts, however, it is clear that Conahan misspoke when he said the charges from the May 2008 robbery spree were supposed to have been dealt with at Osticco's previous sentencing, which took place seven months before the spree.

The only other time Osticco appeared before Conahan after the October 2007 hearing according to court records was in August 2008, when the judge approved Osticco's transfer to state prison and agreed to hear the charges from the robbery spree if they were assigned to him by the court administrator.

Conahan's attorney, Philip Gels, said he and his client would have no comment on the Osticco case.

Sklarosky, Osticco's attorney, did not respond to repeated phone messages.

djanoski@citizensvoice.com

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3 posted comments

The incompetence of the judges and DA office in Luzerne County is criminal. Forget the kickbacks of the judges, this County's ignorance is allowing violent, repeated offenders to walk the streets. It's appalling these people have the power to put our lives at risk. The good-old-boys club continues, but we are talking about violent criminals now, not money. According to public records of a licensed attorney's background, the assistant DA in this case, Mark Ciavarella's daughter, graduated from law school May 2006, passed the PA bar October 2007 and was hired as assistant DA when Musto Carroll was sworn in, January 2008. The assistant DA on this case was there for 9 months. Surely someone else besides Ms. Ciavarella had to approve the sentencing and be aware of the grossly lenient sentence. How can an offender's rap sheet not be a part of the DA's process before attending such a hearing? What the hell is the point of the DA's office then, puppets? Musto Carrol, who's pulling the strings??

Once again, District Attorney Jacqueline Musto Carrol's failure to assert leadership has tainted the judicial system in Luzerne County. First, her silence and complicit acceptance of juveniles being tried, convicted and incarcerated without legal protections has contributed to perhaps the most notable miscarriage of justice in the nation's history. Even more disturbing is her rigid defense of the courtroom antics of the disgraced juvenile judges who are now facing jail. Her desire to retry those children with expunged records is equally appalling especially because, as Luzerne County’s top law enforcement officer, she is the person most responsible for this fiasco. How much more trauma do these children need to be exposed to satisfy Ms. Musto Carroll and at what cost to the taxpayers? In a perverse twist, she has already benefited by receiving funding for five new staff to handle the added workload to cover her failure to do the right thing in the first place. And now, another glaring example of prosecutorial malfeasance by her failure to object to a grossly lenient and inappropriate sentence administered under the good-old-boy network. Her failure to act within legal appeal timelines or insist on a judicial explanation for deviating from sentencing guidelines indicates either complicity and/or incompetence. Her sense of fairness and justice seems grotesque. Under her watch, child first offenders denied legal protections in her court faced longer periods of incarceration for minor offenses than an adult offender with a lengthy criminal history who committed major felonies while in prison. In Jacqueline Musto Carroll's world, having political connections seems more important than other considerations, such as basic justice. The sentencing, handled by the daughter of the judge's convicted co-conspirator, should raise eyebrows and probably warrants an independent investigation. It is an indictment on Carrol's judgment. The cronyism, nepotism, well-documented corruption and millions of misspent taxpayer dollars during Jacqueline Musto Carroll's reign should compel the citizens of Luzerne County to question the competence, ethics, judgment and performance of the District Attorney's Office and if she should forfeit the privilege and honor of continued public service. Drawing upon Keith Oberman’s Countdown show on MSNBC, Ms. Musto Carroll is my nominee for “Worst” Public Official in the World.

ex-judges conahan and ciavarella are playing everyone like a fiddle, including the assistant DA in this case (ciavarella's daughter, what a coincidence?). conahan took advantage of his power in this situation and the lack of checks and balances in place within the DA's office is a disgrace. Who is assistant DA ciavarella's supervisor? convicted repeat offenders should not slip through the cracks because the senior judge abuses his power, and the DA office continues to play ignorant. start hiring people based on merit and drop the nepotism that has plagued this area for too long.